16.6.2012

Official Journal of the European Union

C 174/19

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(Case C-171/12 P)

2012/C 174/30

Language of the case: Spanish

Parties

Appellant: Carrols Corp. (represented by: I. Temiño Ceniceros, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Mr Giulio Gambettola

Form of order sought

—Set aside in its entirety the judgment of the General Court of 1 February 2012 in Case T-291/09;

—uphold in their entirety the claims put forward by Carrols Corp. at first instance.

Pleas in law and main arguments

Infringement of European Union law by the General Court, as a result of breach of Article 52(1)(b) of Regulation No 207/2009 (1) and the case-law interpreting it.

In the judgment under appeal, the General Court concluded that ‘the fact that the signs at issue are identical does not establish bad faith on the part of the intervener, where there are no other relevant factors’.

Case C-529/07 Chocoladefabriken Lindt & Sprüngli [2009] ECR I-4893 makes clear that ‘[w]hether the applicant is acting in bad faith … must be the subject of an overall assessment, taking into account all the factors relevant to the particular case’ (paragraph 37 of the judgment). However, Carrols Corp. submits that the General Court erred by assessing each of the facts individually and in isolation, precluding an overall view being taken and unreasonably increasing the burden of proof on Carrols Corp., thereby prejudicing its right to an effective remedy.

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Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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